Monday, February 06, 2017

The entire reason that UNRWA has different definitions of "refugee" than the rest of the world is because UNRWA existed for a year before the UN Refugee Convention was drafted, and the Refugee Convention included an exception in its definition of refugee to accommodate UNRWA's somewhat different definition. The UNHRC, when it was created, understandably didn't want to leave hundreds of thousands of needy people who were already defined as refugees by the UN without protection, so the Refugee Convention allowed for this differing definition of UNRWA's to be allowed for very specific circumstances.

Here is the wording of the UNRWA exception (it also applied to an agency that was meant to help Korean refugees, UNKRA), in Article 1, paragraph D, "Definition of the term'refugee'":

This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance.

When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.

The wording makes it sound like UNRWA's definition is only valid under this exception provided by UNHCR. In other words, the UNHCR definition of "refugee" is the only operative definition, and UNRWA's exception is part of the Refugee Convention. It isn't an independent definition but is dependent on the conditions that the Refugee Convention allows it.

Those conditions include a crucial phrase, "persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance. "

"At present" seems to me to mean that only those UNRWA refugees who were alive in 1951 are granted the exception to be defined as refugees by UNRWA.

UNRWA only officially added descendants to its definition of refugees later in the 1950s, after the Refugee Convention. But if I am reading this correctly, UNRWA never had that right to begin with. It could not redefine "refugees" outside of the Refugee Convention framework to include unborn people who were not receiving protection at the time of the drafting of the Convention. The writers of the Refugee Convention certainly did not intend for the UNRWA exception to last for decades and to have an entire class of millions of "refugees" created under the narrow exception they granted to UNRWA-protected refugees. The UNRWA exception was meant to be a stopgap until there were no longer any refugees being supported by UNRWA; the drafters did not intend for UNRWA to create new definitions that would increase, rather than decrease, the number of refugees under its purview.

In short, the Refugee Convention does not give UNRWA the right to further expand its definitions of "refugee" beyond the exception explicitly allowed in its language - applying only to those living UNRWA refugees receiving assistance in 1951 and no one else.

Beyond that, there is another contradiction between UNHCR's exception and UNRWA's definitions that seem to indicate that there are far fewer "refugees" than UNRWA claims. UNWRA's definition of refugee includes anyone descended patrilineally from people who lived in Palestine from 1946 to 1948. But that includes people who left the five areas of UNRWA control (Gaza, West Bank, Jordan, Lebanon, Syria) who returned. But the UNHCR says explicitly that if anyone loses that protection - for example, by moving to a Gulf country or Europe - they are no longer allowed to return to become protected by UNRWA, but rather their status becomes defined by UNHCR. Meaning that for them to be considered refugees, they must adhere to the much more stringent definition of UNHCR's. UNHCR does not allow people who left UNRWA's places of operation to return and claim refugee status from UNRWA.

Moreover, the phrase "When such protection or assistance has ceased for any reason" says that anyone who ceased to be under UNRWA protection cannot regain that protection - and this would include a fortiorithose who never had such protection to begin with, namely those who weren't born.

I cannot find any language in the 1967 Refugee Protocol (which extends the definition of refugee beyond the specific World War II refugees that were the subjects of the 1951 Convention) to contradict what I am saying here. In fact, it would seem to strengthen my argument a bit, in the absence of any clarifying language.

UNHCR certainly interprets the 1951 Convention to exclude any Palestinian in the areas of UNRWA operation. It says in its 2011 interpretation of the Refugee Convention:

143. With regard to refugees from Palestine, it will be noted that UNRWA operates only in
certain areas of the Middle East, and it is only there that its protection or assistance are
given. Thus, a refugee from Palestine who finds himself outside that area does not enjoy
the assistance mentioned and may be considered for determination of his refugee status
under the criteria of the 1951 Convention. It should normally be sufficient to establish
that the circumstances which originally made him qualify for protection or assistance
from UNRWA still persist and that he has neither ceased to be a refugee under one of
the cessation clauses nor is excluded from the application of the Convention under one
of the exclusion clauses.

But this may be more convenient than legal. UNRWA has no cessation clauses, and the "circumstances which originally made him qualify for protection" do not seem to apply. They should not apply to those who are descendants of original Palestine refugees who didn't exist when the Refugee Convention was written. And they certainly should not apply for Palestinians who are citizens of Jordan (Jordan gave them citizenship after UNRWA was created) nor for those who live in the areas of British Mandate Palestine - which the UN itself now calls "the State of Palestine." All of these are conditions that did not exist when UNRWA originally created its criteria for eligibility and therefore should not be applicable to continue to define these people as refugees after the Refugee Convention and 1967 Protocol have become international law.

I once again emphasize that I am not a lawyer, but perhaps some international lawyers can shed light on this. Because it sure looks to me that UNRWA's ability to expand its definition of refugees is a violation of the terms given for the exception grandfathered in by the Refugee Convention.

Which would mean that the legal refugees under UNRWA's definition (which cannot exist outside the Refugee Convention framework) would only include people who are now over 66 years old, never having lived anywhere outside the five areas of UNRWA's operations.

UNRWA can give services to non-refugees if it wants to, of course. But unless I'm missing something, it does not seem to have the right to refer to those people as refugees under international law, it cannot fund-raise by referring to them as refugees, and UNHCR should be the agency that provides services to Palestinians who have fled from Syria, not UNRWA, since their refugee status is not determined by events of 1948 but by events of recent years.

Any legal experts are invited to comment, of course.

(h/t Daled Amos)

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